371 F.3d 782 (11th Cir. 2004), 01-11314, Thomas v. Crosby

Docket Nº:01-11314.
Citation:371 F.3d 782
Party Name:James Dwight THOMAS, Petitioner-Appellant, v. James CROSBY, Secretary for the Department of Corrections, Respondent-Appellee.
Case Date:May 26, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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371 F.3d 782 (11th Cir. 2004)

James Dwight THOMAS, Petitioner-Appellant,


James CROSBY, Secretary for the Department of Corrections, Respondent-Appellee.

No. 01-11314.

United States Court of Appeals, Eleventh Circuit

May 26, 2004

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Chet Kaufman and Randolph P. Murrell, Federal Public Defenders, Tallahassee, FL, for Petitioner-Appellant.

Bradley R. Bischoff, State of Florida Parole Commission, Tallahassee, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before TJOFLAT and BLACK, Circuit Judges, and NANGLE [*], District Judge.

BLACK, Circuit Judge:

Appellant James Dwight Thomas, a state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus. We affirm.


In 1973, Appellant pled nolo contendere in Florida state court to second-degree murder and was sentenced to 85 years' imprisonment. He subsequently escaped from a Florida prison and fled to New York, where he remained a fugitive for close to 17 years. In 1993, Appellant was extradited to Florida to serve the remainder of his original sentence.

The Florida Parole Commission (FPC) considered Appellant's case in 1994 and 1997, and ultimately set a presumptive parole release date of October 20, 2017. Appellant challenged the proceedings before the FPC. Of particular relevance to this case, Appellant sought a writ of mandamus in Leon County Circuit Court and then a writ of habeas corpus in Calhoun County Circuit Court. The Leon County Circuit Court denied Appellant's petition for a writ of mandamus. Appellant did not appeal

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that decision. The Calhoun County Circuit Court denied Appellant's petition for a writ of habeas corpus, concluding Appellant was procedurally barred from relitigating issues that had already been raised in his mandamus petition and denying Appellant's remaining claims on the merits. Appellant unsuccessfully appealed that decision.

In February 1999, Appellant sought post-conviction relief in federal court by filing pro se a document captioned "FORM TO BE USED BY FEDERAL PRISONERS FILING A PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241." The district court referred the petition to a magistrate judge, who noted that "[a]lthough petitioner styled his case as under 28 U.S.C. § 2241, since he alleges he is in custody pursuant to a state judgment in violation of his constitutional rights, his appropriate avenue for relief is under 28 U.S.C.§ 2254."

The magistrate judge recommended that two of Appellant's four claims be denied under exhaustion and procedural bar principles and that Appellant's remaining two claims be denied on the merits. The district court adopted the magistrate judge's report and recommendation and denied Appellant's petition for habeas relief.

On July 5, 2001, we issued a certificate of appealability under 28 U.S.C. § 2253 on the following issue:

Whether the district court erred in finding that appellant's first two claims that he was denied due process and equal protection under the law by the Florida Parole Commission in the setting of his presumptive parole release date and in refusing to set an effective parole release date were procedurally barred in light of O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

After this issue was briefed, however, we sua sponte vacated the July 5 certificate of appealability and issued a new one on the following issue only:

Whether the district court erred in converting petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 into an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in that petitioner's application did not collaterally attack a state court conviction. Instead, the application attacked a decision of the Florida Parole Commission concerning petitioner's parole eligibility.

We now hold Appellant's petition for a writ of habeas corpus is governed by both 28 U.S.C. § 2241 and 28 U.S.C. § 2254.


Before addressing the merits of the issue set out in the second COA, we briefly address the State's contention that the issue is not properly before the Court because Appellant never raised it.

Notably, there is no question we have jurisdiction in this case. "A COA is usually a jurisdictional prerequisite to an appeal in a post-conviction relief proceeding following a state or federal court conviction." Pagan v. United States, 353 F.3d 1343, 1344-45 (11th Cir. 2003); see also 28 U.S.C. § 2253(c)(1) ("Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals...."). In this case, the first COA gave us jurisdiction over the appeal. It is of no consequence that we subsequently asked the parties to proceed on a different issue. Even assuming we did err by sua sponte issuing the second COA, any such error was not jurisdictional. See Young v. United States, 124 F.3d 794, 799 (7th Cir. 1997) (refusing to treat an erroneously issued COA the same as the lack of a COA).

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Moreover, we will not now consider nonjurisdictional challenges to the propriety of our issuance of the second COA. The entire point of § 2253's COA requirement is to eliminate those appeals that have little or no merit, thereby preserving judicial resources. See Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003) ("By enacting [the AEDPA COA requirement] ... Congress confirmed the necessity and the requirement of differential treatment for those appeals deserving of attention from those that plainly do not."). Once the parties have briefed and argued the issue set out in a COA and we have reached the point of considering an appeal on the merits, the time for scrutinizing the COA has long since passed. Were we to entertain belated challenges to COAs, we effectively would add another layer of complexity to the already complicated regime for post-conviction relief. See Young, 124 F.3d at 799 ("An obligation to determine whether a certificate should have been issued, even if the parties do not present this issue for decision ... would increase the complexity of appeals in collateral attacks and the judicial effort required to resolve them, the opposite of the legislative plan."). This we will not do.

The State's primary complaint regarding the second COA is that Appellant did not raise the issue set out therein and therefore has waived it. As we rule in the State's favor on the merits based on prior Circuit precedent, we need not resolve the waiver issue.

The issue set out in the second COA--whether the district court erred by treating the petition filed by Appellant, a state prisoner in custody pursuant to the judgment of a state court, as one under 28 U.S.C. § 2254 rather than one under 28 U.S.C. § 2241--has been resolved by our intervening decision in Medberry v. Crosby, 351 F.3d 1049 (11th Cir. 2003), cert. denied, --- U.S. ----, 124 S.Ct. 2098, 158 L.Ed.2d 714 (2004).

In Medberry, we held that a habeas petition filed by a state prisoner in custody pursuant to the judgment of a state court is subject both to § 2241 and to § 2254, with its attendant restrictions. 1 In deciding Medberry, we conducted a searching review of habeas and post-conviction relief law. Although there is no need to repeat here all that we said in Medberry, we will for the sake of completeness repeat some of the more significant points from that decision.

"[T]here are two distinct means of securing post-conviction relief in the federal courts: an application for a writ of habeas corpus (governed by, inter alia, §§ 2241 and 2254) and a motion to vacate a sentence (governed by § 2255)." Medberry, 351 F.3d at 1058. With respect to the writ of habeas corpus proper, we stated in Medberry:

[T]he writ of habeas corpus is a single post-conviction remedy principally governed by two different statutes....

The difference between the statutes lies in the breadth of the situations to which they apply. Section 2241 provides that a writ of habeas corpus may issue to a prisoner in the following five situations:

(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or

(2) He is in custody for an act done or omitted in pursuance of an Act of

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Congress, or an order, process, judgment or decree of a court or judge of the United States; or

(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or

(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or

(5) It is necessary to bring him into court to testify or for trial.

28 U.S.C. § 2241(c). Section 2254, on the other hand, applies to a subset of those to whom § 2241(c)(3) applies--it applies to "a person in custody pursuant to the judgment of a State court" who is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added).

Id. at 1059. Accordingly, we concluded in Medberry that where a prisoner is in custody pursuant to the judgment of a state court, his petition is subject to both § 2241 and § 2254. Id. at 1064.

In so ruling, we pointed out that our conclusion was supported by the canon of statutory construction that the more specific statute takes precedence over the more general statute...

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